Ramalingam v. Keller Williams Realty Group, Inc.

J-A16012-15

2015 PA Super 172

GOVINDARAJU RAMALINGAM, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

KELLER WILLIAMS REALTY GROUP, INC.,

& JANET PALLADINO,

Appellees No. 2185 EDA 2014

Appeal from the Judgment Entered August 26, 2014

in the Court of Common Pleas of Delaware County

Civil Division at No.: 12-051685

BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

OPINION BY PLATT, J.: FILED AUGUST 18, 2015

Appellant, Govindaraju Ramalingam, appeals from the judgment

entered, after a bench trial, in favor of Appellees, Keller Williams Realty

Group, Inc. and Keller Williams real estate agent, Janet Palladino,

defendants at the trial. Appellant personally handed over to the builder his

check as a deposit for the construction of a house, as required in the

agreement of sale he signed. Nevertheless, he maintains that Appellee

Palladino was liable for not placing his deposit payment into escrow, or

advising him to do so. We conclude that the trial court correctly decided

that Appellant waived any rights to escrow by accepting and complying with

the builder’s direct deposit requirement. Accordingly, we affirm.

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*

Retired Senior Judge assigned to the Superior Court.

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The trial court did not provide findings of fact.1 We derive the facts

pertinent to disposition from our independent review of the record.

On September 30, 2009, Appellant (“Buyer”) signed an “Agreement of

Sale For New Construction” for a house to be built on a lot at 23 Calabrese

Drive in Media, Pennsylvania by CLM Builders, Inc. (Seller).2 (See Plaintiff’s

Exhibit 3). “Miscellaneous Provision No. 1” of the agreement provided as

follows: “Buyer agrees the deposit shall be paid directly to the Seller

and will be used toward the construction of buyer’s specific

property.” (See id. at 7 (emphasis added); see also Plaintiff’s First

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1

Instead, it merely presents counsels’ competing versions of proposed

findings of fact, and adds selected excerpts from trial testimony, without

expressly resolving any discrepancies. (See Trial Court Opinion, 11/18/14,

at 2-14). The trial court offers one assessment of credibility. (See id. at

21). The trial court’s further assessment of credibility and the weight of the

evidence as to disputed questions of fact could have been helpful to our

review. Nevertheless, the underlying facts directly relevant to the

disposition of this appeal are not in substantial dispute. Although the parties

differ in their versions of a few ancillary matters, the applicable legal issues

are clear, and our appellate review is not impeded.

Where a trial judge, following a non-jury trial, renders a general

decision unaccompanied by specific findings of fact, the judge’s decision is to

be accorded the same weight and given the same effect as a jury verdict.

See Totten v. Lampenfeld, 466 A.2d 663, 664 (Pa. Super. 1983).

2

In his brief, Appellant maintains that the address was 15 Calabrese Drive.

(See Appellant’s Brief, at 5). However, in his own proposed statement of

facts, Appellant stated (as did Appellees) that the lot was at 23 Calabrese

Drive. (See Plaintiff’s Proposed Findings of Fact and Conclusions of Law,

3/20/14, at unnumbered page 2 ¶ 4). Lot numbers were assigned to houses

during construction; street addresses were not assigned until settlement.

(See N.T. Trial, 1/22/14, at 148). The discrepancy is not material to our

disposition.

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Amended Complaint, 8/22/12, Exhibit A, at unnumbered page 8; Trial Ct.

Op., at 18). The agreement was approved on behalf of Seller, CLM Builders,

Inc., by Stephen Lynch. Appellee Palladino witnessed both signatures.

Appellant also initialed and signed a broker agreement, captioned

“Business Relationship Between Broker and Buyer,” dated September 30,

2009. (See Plaintiff’s Exhibit 1). Ms. Palladino signed in acceptance on

behalf of Keller Williams. The agreement provided in pertinent part that the

broker (Keller Williams) may also represent the Seller. (See id. at 1, ¶¶ 3,

4). Appellee Palladino was designated the “licensee” of the broker. Section

10 of the broker agreement, DEPOSIT MONEY, in pertinent part provided:

(A) Broker will keep (or will give to the listing broker, who

will keep) all deposit monies that Broker/Licensee receives in

an escrow account as required by the real estate licensing laws

and regulations until the sale is completed or the agreement of

sale is ended. Buyer agrees that Broker may wait to deposit any

uncashed check that is received as deposit money until Buyer's

offer has been accepted.

(Id. at 2 ¶ 10) (emphasis added). The broker agreement also included the

following notice to the buyer:

EXPERTISE OF REAL ESTATE AGENTS Pennsylvania real

estate agents are required to be licensed by the Commonwealth

of Pennsylvania and are obligated to disclose adverse factors

about a property that are reasonably apparent to someone with

expertise in the marketing of real property.

(A) If Buyer wants information regarding the specific conditions

or components of the property which are outside the Agent’s

expertise, Buyer is encouraged to seek the advice of an

appropriate professional.

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(B) If Buyer wants financial, legal or any other advice,

Buyer is encouraged to seek the services of an

accountant, lawyer, or other appropriate professional.

(Id. at 3, Notices to Buyers) (emphasis added).

Furthermore, and also on September 30, 2009, Appellant signed a

disclosure form regarding dual agency, referencing the agreement of sale of

September 30, 2009, and acknowledging that the dual agency had been

disclosed to him prior to the referenced offer to purchase. (See Plaintiff’s

Exhibit 2).3 The dual agent disclosure notice expressly designated Keller

Williams as “Broker and as Dual Agent” which “owes fiduciary duties to both

Buyer and Seller[ ]” and named Ms. Palladino as “Designated Licensee” of

both Seller and Buyer, respectively. (Id.).

Several days later, on October 5, 2009, again in the presence of

Appellee Palladino, Appellant paid $44,990 (ten per cent of the sale price of

the house), by personal check made payable to CLM Builders, Inc., directly

to Stephen Lynch, apparently a principal of CLM Builders, along with Thomas

Fischer. (See Plaintiff’s Exhibit 4).

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3

In fact, there is no dispute that Appellant first met Ms. Palladino in the

spring of 2009, when she was representing CLM Builders at an “Open House”

for the sale of the property adjacent to 23 Calabrese Drive, 25 Calabrese

Drive. Appellee Palladino testified that Appellant offered $360,000 for that

property, which was listed for $500,000. (See N.T. Trial, at 154). CLM

rejected the offer. (See id.).

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Appellee Palladino testified that Appellant would not give the check to

her, and instead insisted on handing it over personally to Mr. Lynch,

necessitating the separate second meeting. (See N.T. Trial, 1/22/14, at

167). Appellant does not dispute handing the check over personally, but

claims that he was following the instructions of Ms. Palladino. (See id. at

227) (”I totally relied on my agent. So whatever she said, that’s what I did

it [sic].”).

In any event, Appellant soon got embroiled in disputes over

construction, including the square footage of the house. He complained that

his house was smaller than the adjacent one that he first wanted. (See id.

at 181-82). There were also disputes about certain “extras,” and changes.

Notably, Appellant apparently wanted a standard second floor laundry

room removed and relocated to the basement, the space redesigned, and

replaced with the installation of a religious altar. (See Defendants’

[Appellees’] Proposed Findings of Fact and Conclusions of Law, 2/25/14, at

unnumbered page 3 [3b], ¶ 21; see also Plaintiff’s [Appellant’s] Proposed

Findings of Fact and Conclusions of Law, 3/20/14, at unnumbered page 9 ¶¶

45-48).

CLM Builders apparently objected because of the adjustments of space

allocation required to convert the laundry room to an altar room, the extra

cost of installation of plumbing fixtures to the basement, and possible

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difficulties in re-selling the house without second floor laundry facilities if the

deal fell through (which, in the event, it did).

In his proposed findings of fact, Appellant stated that he retained a

lawyer, Raymond Falzone, Esq. in June of 2010.4 (See Plaintiff’s Proposed

Findings of Fact and Conclusions of Law, 3/20/14, at unnumbered page 7,

¶ 28). Mr. Falzone sent a demand letter to CLM and Keller Williams. (See

Plaintiff’s Exhibit 5, Letter of Raymond J. Falzone, Jr. to Steve Lynch, CLM

Builder [sic]; and Janet Palladino, Keller Williams, 6/08/10). The letter

itemized numerous issues of disagreement and threatened litigation if there

was no response in seven days. (See id. at unnumbered pages 1-4).

The letter did not contain a specific “grand total” but included a

demand for a credit of at least $49,014.80 (for the reduced square footage),

and other claims which Mr. Falzone agreed at trial could have cost up to

$70,000. (See N.T. Trial, at 115).

Attorney Falzone also testified at trial that if he had been retained in

advance of the agreement of sale (rather than after the fact), he would have

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4

On cross-examination, Mr. Falzone first testified that he was retained

around April or May of 2010. (See N.T. Trial, at 111). On prodding from

defense counsel, he amended that to “probably . . . somewhere in ’09.” (Id.

at 112). Defense counsel, Thomas J. Gregory, Esq., maintained that

Appellant had previously testified under oath that he retained Attorney

Falzone in September of 2009. (See id. at 111-12). Attorney Falzone

replied that he was not aware of that. (See id.). Despite the obvious

discrepancies, there is no dispute that Appellant did not retain Mr. Falzone

until after the agreement of sale was signed. (See id. at 112).

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advised against the deposit of money directly with the builder. (See id. at

108).

However, when asked, over objection of Appellant’s counsel, 5 what his

advice would be if the builder refused to sell under those conditions, Mr.

Falzone replied, “Then [Appellant would] have to make a decision whether

he wanted to go forward with the Agreement of Sale on those terms or want

to do something else . . . .” (Id. at 109).

When asked why he did not demand return of the deposit in this

matter, Mr. Falzone replied,

“We ─ it was past the point . . . . It was already ─ the

horses were already out of the barn. The money had already

been put somewhere with the builder and it was made payable

to CLM, so it was ─ the money was gone into CLM’s coffer, I’m

thinking.”

(Id. at 112-13; see also Trial Ct. Op., at 12).

While the parties do not agree on how the transaction actually

unraveled, based on the record and the trial court’s review, neither Appellant

nor his counsel demanded return of the deposit from CLM, or requested

release from the agreement of sale.6 (See Trial Ct. Op., at 12-13). There

____________________________________________

5

The trial court overruled the objection.

6

The trial court rejected the claim that CLM had no money to refund the

deposit (which was never requested), based on documentary evidence

provided at trial reflecting a court record that no corporate bankruptcy had

occurred, and a department of state record that CLM continued to be a

(Footnote Continued Next Page)

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was in fact no formal release or termination agreement. However, there is

also no dispute that the parties were unable to settle their differences.7

The matter proceeded to arbitration. At the arbitration, Ms. Palladino

apparently testified that CLM ceased construction because the price

reductions which Appellant demanded left insufficient funds for completion of

construction. After the arbitration, Appellant filed a complaint in the court of

common pleas.8

The bench trial occurred on January 22, 2014. In addition to

Appellant’s testimony, the court permitted Appellant’s counsel to call Ms.

Palladino to testify for the plaintiff (Appellant here) as of cross. As

previously noted, Appellant’s retained transaction attorney, Mr. Falzone, also

testified. Both parties’ counsel agreed to submit written reports of their two

respective experts for the court’s consideration. (See N.T. Trial, 1/22/14, at

239, 242; see also Plaintiff’s Exhibit 9, opinion letter of Alfred V. Altopiedi,

[Esq.] to Anthony S. Pinnie, Esq. [Appellant’s trial counsel], 9/10/13; and

Defendant’s Exhibit 6, opinion letter of Barry W. DeGroot, Esq. to Glen D.

_______________________

(Footnote Continued)

Pennsylvania corporation in good standing. (See Trial Ct. Op., at 6; see

also N.T. Trial, at 240-41).

7

CLM ceased construction and the bank eventually foreclosed on the

property, which was completed by another builder and sold to a third party.

8

Appellees filed preliminary objections, which the trial court overruled.

(See Order, 11/26/12). They are not at issue in this appeal.

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Kimball, Esq. and Thomas J. Gregory, Esq. [Appellees’ trial counsel],

10/09/13). Neither expert testified or was cross-examined.

Referencing their expert’s report, the defense made a de facto final

argument that because Appellant refused to pay market value for the

property, he was the cause of his own damages. (See N.T. Trial, at 243).

The defense requested (and the court agreed) that Appellee Palladino’s

testimony as of cross be incorporated by reference as testimony for the

defense. The defense called no other witnesses. After the admission of the

exhibits, the defense rested. (See id. at 244).

On April 28, 2014, the trial court entered a verdict in favor of both

Appellees, and against Appellant. (See Verdict, 4/28/14). The court also

dismissed Appellant’s amended complaint with prejudice. (See id.). On

May 7, 2014, Appellant filed a motion for post-trial relief, seeking a new trial

or judgment in his favor, which the trial court denied. (See Order,

7/09/14).

Appellant appealed.9 (See Notice of Appeal, 7/17/14). At the

direction of this Court, the trial court entered judgment on August 26,

2014.10

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9

Appellant filed a timely court-ordered statement of errors on August 8,

2014. The trial court filed its opinion on November 18, 2014. See Pa.R.A.P.

1925.

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Appellant raises four questions for our review:11

1. Was [Appellee] Palladino negligent per se for violating

the Pennsylvania Code as it relates to escrow?

2. Did the court err by failing to conclude that [Appellee]

Palladino, as a dual agent, was negligent for breaching her

duty/fiduciary duty?

3. Was there ambiguity between the Keller Williams’

contract and the Builder’s contract?

4. Did the trial judge improperly disregard [Appellant’s]

expert and his opinion?

(Appellant’s Brief, at 2-5).12

_______________________

(Footnote Continued)

10

Therefore, Appellant’s notice of appeal is deemed timely filed. See

Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the announcement of a

determination but before the entry of an appealable order shall be treated as

filed after such entry and on the day thereof.”).

11

Appellant omits a copy of the statement of errors in his brief, failing to

comply with Pennsylvania Rule of Appellate Procedure 2111(a) (11).

Appellant originally presented fourteen allegations of error in his Rule

1925(b) statement. (See “Concise Statement of Matters Complained of on

Appeal,” 8/08/14, at unnumbered pages 1-3). Many of the errors asserted

were repetitive or overlapping. On appeal, as noted, Appellant presents four

questions. For completeness and clarity, we deem all issues not properly

preserved and fairly comprised or suggested by the statement of four

questions involved to be abandoned on appeal. See Pa.R.A.P. 2116(a). In

particular, all claims against Keller Williams under respondeat superior and

failure to supervise are abandoned, and we deem them waived.

12

We admonish counsel that this presentation of the questions involved fails

to comply with our Rule 2116, which, in pertinent part directs that “[e]ach

question shall be followed by an answer stating simply whether the court or

government unit agreed, disagreed, did not answer, or did not address the

question.” Pa.R.A.P. 2116(a) (emphasis added). Here, counsel has

impermissibly appended to each question extended argument in support of

Appellant’s claims. Argument is for the argument section. See Pa.R.A.P.

(Footnote Continued Next Page)

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Our standard of review is well-settled.

Our review of the trial court’s decision after a non-jury trial

is limited to determining whether the findings of the trial court

are supported by the competent evidence and whether the trial

court committed error in the application of law. It is not our role

to pass on the credibility of witnesses, as the trial court clearly is

in the superior position to do so.

Kornfeld v. Atl. Fin. Fed., 856 A.2d 170, 173 (Pa. Super. 2004), appeal

denied, 871 A.2d 192 (Pa. 2005) (citation and internal quotation marks

omitted).

In his first question, Appellant asserts the trial court erred by not

finding that Appellee Palladino was negligent per se for violating the

Pennsylvania Code provisions pertinent to escrow. (See Appellant’s Brief, at

3). However, in the argument section, Appellant, in disregard of our rules,

then combines argument for two independent issues, viz., that Appellee

Palladino was negligent under traditional common law principles, with

another abbreviated argument claiming negligence per se.13 (See id. at 10-

11). Appellant has failed to comply with Pa.R.A.P. 2119:

The argument shall be divided into as many parts as there

are questions to be argued; and shall have at the head of each

part─in distinctive type or in type distinctively displayed─the

_______________________

(Footnote Continued)

2119. Our Rules neither countenance nor permit the statement of questions

to be an opportunity to insert additional argument. Non-compliance defeats

the purpose of the rules.

13

The negligence per se argument, taken alone, amounts to one paragraph

of five sentences with no supporting case authority whatsoever. (See

Appellant’s Brief, at 11).

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particular point treated therein, followed by such discussion and

citation of authorities as are deemed pertinent.

Pa.R.A.P. 2119(a).

We could find a waiver of Appellant’s claims for failure to comply with

Rule 2119. However, in the interest of judicial economy, we will address the

claims on their merits. In any event, we disagree with both assertions.

Neither of Appellant’s negligence claims merit relief.

“Initially, we note, a trial court’s application of a statute is a question

of law that compels plenary review to determine whether the court

committed an error of law.” Commonwealth v. Flaherty, 89 A.3d 286,

288 (Pa. Super. 2014) (citation and internal quotation marks omitted). This

Court has reviewed code provisions similarly. See Commonwealth v.

Williams, 941 A.2d 14, 21 (Pa. Super. 2008). “As with all questions of law,

the appellate standard of review is de novo and the appellate scope of

review is plenary.” In re Wilson, 879 A.2d 199, 214 (Pa. Super. 2005) (en

banc ) (citations omitted).

Generally, to prevail in a negligence case, a plaintiff must

demonstrate the following elements: (1) the defendant owed a

duty to the plaintiff; (2) the defendant breached that duty; (3) a

causal relationship between the breach and the resulting injury

suffered by the plaintiff; and (4) actual loss suffered by the

plaintiff. . . .

The concept of negligence per se establishes the elements

of duty and breach of duty where an individual violates an

applicable statute, ordinance, or regulation designed to prevent

a public harm. However, a plaintiff, having proven negligence

per se cannot recover unless it can be proven that such

negligence was the proximate cause of the injury suffered.

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We have defined negligence per se in the following

fashion:

[Negligence per se is] conduct, whether of action or

omission, which may be declared and treated as

negligence without any argument or proof as to the

particular surrounding circumstances. Pennsylvania

recognizes that a violation of a statute or ordinance may

serve as the basis for negligence per se. However, a court

will not use a statute or regulation as the basis of

negligence per se where the purpose of the statute is to

secure to individuals the enjoyment of rights or privileges

to which they are entitled only as members of the public.

In order to prove a claim based on negligence per se, the

following four requirements must be met:

(1) The purpose of the statute must be, at least in

part, to protect the interest of a group of individuals, as

opposed to the public generally;

(2) The statute or regulation must clearly apply to

the conduct of the defendant;

(3) The defendant must violate the statute or

regulation;

(4) The violation of the statute or regulation must be

the proximate cause of the plaintiff’s injuries.

Schemberg v. Smicherko, 85 A.3d 1071, 1073-74 (Pa. Super. 2014)

(citation omitted).

Here, Appellant utterly fails to develop an argument that demonstrates

the four elements of common law negligence (duty, breach, causation, and

loss). (See Appellant’s Brief, at 10-11). Instead, he baldly asserts the trial

court erred by not finding that Appellee Palladino had a duty to advise him

“that he could lose his money if the deal fell through.” (Id. at 11).

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Appellant points to nothing in the record which references this claim.

Nor, for that matter, does he establish that he did not know this fairly

obvious conclusion already. In any event, for authority, Appellant cites to

Gorman v. Costello, 929 A.2d 1208, 1212-13 (Pa. Super. 2007). (See id.

at 10). His reliance is misplaced. Gorman involved the propriety of an

incomplete jury instruction, not at issue in this appeal from a bench trial, on

the factual cause of injuries claimed to have occurred in a motor vehicle

accident (as opposed to a pre-existing degenerative spinal condition).14 See

id. at 1213.

Here, Appellant’s argument fails to establish negligence or that his

case authority on personal injury causation applies. His first claim does not

merit relief.

Similarly, Appellant fails to develop any pertinent argument that

Appellee Palladino was negligent per se. (See Appellant’s Brief, at 11).

Appellant offers no case authority at all in support of his claim that the

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14

The only other case cited by Appellant as authority is Reilly v.

Tiergarten Inc., 633 A.2d 208 (Pa. Super. 1993), appeal denied, 649 A.2d

675 (Pa. 1994). (See Appellant’s Brief, at 10). Reilly decided in pertinent

part that the appellant had not established a cause of action in negligence

against bar owners who had served him, a minor, in violation of the Dram

Shop Act, because his subsequent assault on his father and police was too

remote to be foreseeable. See id. at 210. While Reilly accurately recites

the traditional four elements of negligence, Appellant never shows that the

four elements exist here, nor does he develop an argument beyond the

recitation of the formula. (See id.; see also Appellant’s Brief, at 10).

Reilly’s application to the instant appeal beyond that recitation is too

tenuous to merit further discussion.

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administrative code provisions pertaining to escrow of funds received are

controlling. Instead, he relies exclusively on the mere bald assertion that

Ms. Palladino had a code-based duty to hold the deposit in escrow, and that

duty was non-waivable. (See id.; see also 49 PA ADC § 35.321 (duty to

deposit funds received into escrow); 49 PA ADC § 35.322 (duty to escrow

funds in sub-section 321 is non-waivable).

Appellant argues that Appellee Palladino was negligent per se because

she purportedly violated section 35.321 of the Pennsylvania Administrative

Code (duty to deposit money belonging to another into escrow account),15

which is made non-waivable by sub-section 322.16 (See Appellant’s Brief, at

12).

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15

Duty to deposit money belonging to another into escrow account.

(a) Except as provided in subsection (b) [excluding receipt

of rents as a property manager], a broker shall deposit money

that the broker receives belonging to another into an

escrow account in a Federally or State-insured bank or

depository to be held pending consummation of the transaction

or a prior termination thereof that does not involve a dispute

between the parties to the transaction, at which time the broker

shall pay over the full amount to the party entitled to receive it.

If a broker is a partnership, association or corporation, its broker

of record shall be responsible for ensuring that the escrow duty

is performed.

49 PA ADC § 35.321.

16

35.322. Nonwaiver of escrow duty.

(Footnote Continued Next Page)

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However, Appellant fails to establish that this duty to escrow funds

received applies when funds are not received by the broker or real estate

agent. Impugning Ms. Palladino for “allow[ing] a check . . . to be made out

to the builder,” and labeling the transaction a “sneaky shell game” is not

proper (or persuasive) legal argument, and does not excuse the failure to

develop a proper legal argument supported by pertinent citation to

authority. (Id. at 9); see also Pa.R.A.P. 2119(a), (b).

To the contrary, on independent review, we agree with the trial court

that Appellant, a practicing engineer with a college degree in engineering

(who apparently made copious notes on the original documents, suggesting

he was knowledgeable and diligent about what he read and was asked to

sign),17 was able to understand what he read and signed. (See Trial Ct.

Op., at 4, 21). The trial court found that Appellant’s claim, that he did not

read or understand Miscellaneous Provision No. 1, was not credible. (See

id., at 21). We defer to the credibility findings of the trial court. See

Kornfeld, supra at 173.

_______________________

(Footnote Continued)

A broker’s escrow duty may not be waived or altered by an

agreement between the parties to the transaction, between the

broker and the parties, or between the broker and other brokers

who may be involved in the transaction.

49 PA ADC § 35.322.

17

(See Trial Ct. Op., at 10).

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Appellant is charged with knowledge of the terms he read, agreed to,

and signed. Accordingly, on independent review of the record, we agree

with the trial court that Appellant made a knowing decision to waive his

rights to place the money in escrow (or to walk away from the deal

altogether), by complying with the Agreement of Sale requirement to deposit

the money directly with the builder for the construction of his house. (See

Trial Ct. Op., at 6). The trial court apparently accepted Appellee Palladino’s

testimony that she (correctly) informed Appellant if he did not provide the

deposit directly to the builder, the builder would not build the house for him.

(See id. at 10). Appellee Palladino duly disclosed accurate information.

This is not negligence per se.

We also agree with the trial court’s conclusion that the cited escrow

provisions on which Appellant relies only apply if funds are entrusted to the

real estate agent. (See Trial Ct. Op., at 6-7, 22-23). Where, as here, the

buyer agrees to pay the deposit directly to the builder, the real estate agent

has not received funds. Appellee Palladino was not obliged to escrow funds

she never received. Appellant offers no pertinent authority to the contrary.

Appellant’s first claim does not merit relief.

In his second claim, Appellant assigns error to the trial court for not

concluding that Appellee Palladino was negligent per se for breaching a

fiduciary duty. (See Appellant’s Brief, at 2-3). Again, Appellant asserts, but

fails to develop, an argument in support of his claim with pertinent

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discussion and citation to authority. (See id. at 12-14); see also Pa.R.A.P.

2119(a), (b). For the claim of fiduciary duty, Appellant cites only one case,

Basile v. H & R Block, Inc., 761 A.2d 1115, 1120 (Pa. 2000), involving tax

preparation. (See Appellant’s Brief, at 13). Notably, Basile concluded on

the facts presented that a fiduciary duty did not exist. See Basile, supra

at 1121 (holding as matter of law that tax preparer which provided, as one

of three refund options, tax refund anticipation loan through independent

bank, was not acting as appellees’ agent and not subject to heightened

fiduciary duty).

Additionally, Appellant baldy asserts that Appellee Palladino’s prior

course of dealing with one of CLM’s principals (Fischer) created a conflict of

interest. (See Appellant’s Brief, at 13). Appellant develops no argument in

support of the claim that the mere history of prior business relationships

establishes a conflict of interest, or any citation to authority whatsoever to

buttress this assertion. (See id.). Nor does he establish any conflict of

interest in the specific property at issue. Appellant’s conflict of interest

argument is waived and would merit no relief.

Appellant’s remaining arguments (e.g., Appellee Palladino’s breach of

duty by failure to disclose her part-ownership interest in Keller Williams’ in-

house title/settlement company) are undeveloped and unsupported by any

controlling authority. Appellant’s second claim is waived for this reason as

well. See Pa.R.A.P. 2119(a), (b).

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Moreover, it would merit no relief. Appellant’s claim that Appellee

Palladino somehow breached a fiduciary duty because there were liens on

the property fails on its underlying premise. It disregards the evidence of

record that similar if not identical liens on the adjacent Calabrese property

were all satisfied or removed by closing. Furthermore, Appellant fails to

show that the existence of liens (and their timely satisfaction) is not

common in real estate practice.

Additionally, under Basile, supra, cited with approval by Appellant,

mere incidental benefit from an interest in a related transaction does not

establish a fiduciary duty:

The special relationship arising from an agency agreement,

with its concomitant heightened duty, cannot arise from any and

all actions, no matter how trivial, arguably undertaken on

another’s behalf. . . . Nothing prevented appellees from

questioning [appellant’s] employees regarding the basis for the

costs of the [tax refund anticipation loan] and whether

[appellant] benefited from the financing service. If [appellant’s]

response did not satisfy appellees, they were free to take their

business elsewhere. That is the essence of our market economy.

Basile, supra at 1121-22.

Here, Appellant cannot conjure up a fiduciary duty by scattershot

references to a variety of situations or historical conditions, such as prior

dealings with one of the builders, or incidental ownership in an in-house title

company, utterly fail to establish how any of them impact the issues on

appeal, and none of which are supported by controlling authority, then ipso

facto prove a breach of duty or negligence per se.

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We observe that at trial, Appellant repeatedly responded to all

questions about his course of dealing with Appellee Palladino and CLM

Builders by asserting that he relied exclusively on his agent. (See e.g., N.T.

Trial, at 227 (“I used to deal only with my agent, Mrs. Palladino.”)).

However, after extensive questioning on cross-examination, Appellant

conceded that he never asked Appellee Palladino for a return of his deposit:

Q. When did you go to Janet [Palladino] and say, tell me

how I get my money back?

A. I did not ask her at all.

(Id. at 228).

Also, Appellant signed an acknowledgement of notice that if he wanted

legal, accounting or other advice he should consult with a lawyer,

accountant, or other professional. (See Plaintiff’s Exhibit No. 1). It is

undisputed that Appellant chose not to do so until after the fact. The lawyer

he did retain testified that he would have given Appellant essentially the

same advice that Appellee Palladino gave him, viz., he had to make a

decision whether to pay the builder directly, or do something else. (See N.T

Trial, at 109). Appellant’s second claim, even if not waived, would not merit

relief.

Appellant’s third claim is that there was an ambiguity between the

Keller Williams’ contract and the Agreement of Sale. (See Appellant’s Brief,

at 4). Appellant argues that the trial court erred by failing to address the

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ambiguities between the agreement of sale and “the dual agency contract.”

(Id. at 15). We disagree.

The fundamental rule in interpreting the meaning of a

contract is to ascertain and give effect to the intent of the

contracting parties. The intent of the parties to a written

agreement is to be regarded as being embodied in the writing

itself. The whole instrument must be taken together in arriving

at contractual intent. Courts do not assume that a contract’s

language was chosen carelessly, nor do they assume that the

parties were ignorant of the meaning of the language they

employed. When a writing is clear and unequivocal, its

meaning must be determined by its contents alone.

Only where a contract’s language is ambiguous may

extrinsic or parol evidence be considered to determine the intent

of the parties. A contract contains an ambiguity if it is

reasonably susceptible of different constructions and capable of

being understood in more than one sense. This question,

however, is not resolved in a vacuum. Instead, contractual

terms are ambiguous if they are subject to more than one

reasonable interpretation when applied to a particular set of

facts. In the absence of an ambiguity, the plain meaning of the

agreement will be enforced. The meaning of an unambiguous

written instrument presents a question of law for resolution by

the court.

Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418, 429-30

(Pa. 2001) (citations and quotation marks omitted) (emphasis added).

Here, after careful review, we conclude that there is no ambiguity in

the meaning of the provision at issue. Appellant candidly concedes that

when the words of a written contract are clear and unambiguous the intent

is to be derived only from the express language of the agreement, citing In

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re Breyer's Estate, 379 A.2d 1305, 1309 (Pa. 1977).18 (See Appellant’s

Brief, at 14).

Nevertheless, he seeks to undermine the inevitable result of this plain

meaning rule by reference to various learned treatises, obviously intended to

raise doubts about the application of the rule. However, on careful reading,

it is apparent that none of the textbook citations undermine the general

principle.19 (See id.). Instead, the quotations from the commentators do

little more than suggest that words should be read in the context of

surrounding circumstances, and the rule should not be applied inflexibly.

In any event, Appellant offers no controlling authority to support his

supposition that one document, unambiguous on its face, can become

ambiguous under Pennsylvania law by reference to a second document, to

which one of the signatories is not even a party.

____________________________________________

18

For clarity, the exact quote is reproduced here:

When the parties to an agreement reduce their understanding to

a writing which uses clear and unambiguous terms, a court need

look no further than [the] writing itself when asked to give effect

to that understanding.

In re Breyer's Estate, 379 A.2d 1305, 1309 (Pa. 1977) (citations omitted).

19

We note that Appellant claims “[t]his Court, too, has cautioned about

the dangers of focusing only upon the words . . . .” but then cites to a

treatise on evidence quoted in Corbin on Contracts. (Appellant’s Brief, at

14) (emphasis added).

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To the contrary, “[o]nly where a contract’s language is ambiguous may

extrinsic or parol evidence be considered to determine the intent of the

parties.” Murphy, supra at 429. “When a writing is clear and unequivocal,

its meaning must be determined by its contents alone.” Id. (citation

omitted) (emphasis added).

Here, after independent review, we conclude that the meaning of the

text at issue could not be clearer. Seller insisted in its agreement, and

Appellant as Buyer agreed, to pay his deposit directly to Seller, for the

construction of his house. The trial court viewed this claim of ambiguity as

“[n]onsensical.” (Trial Ct. Op., at 20). We conclude it is legally frivolous.

Appellant’s third claim fails.

In Appellant’s fourth and final question, he challenges the trial court’s

“disregard” of evidence, namely, the opinion report provided by his expert

witness. (Appellant’s Brief, at 5). Appellant argues, in effect, that the trial

court erred by not accepting the opinion of his expert. (See id.). He

maintains that the trial court incorrectly accepted Appellees’ argument that

the “Real Estate Licensing and Registration Act,” (also referred to as RELRA),

63 Pa.C.S.A. §§ 455.101 ─ 455.902, applied. We disagree.

Our standard of review is well-settled.

It is well established in this Commonwealth that the

decision to admit or to exclude evidence, including expert

testimony, lies within the sound discretion of the trial court.

Moreover, our standard of review is very narrow; we may only

reverse upon a showing that the trial court clearly abused its

discretion or committed an error of law. To constitute reversible

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error, an evidentiary ruling must not only be erroneous, but also

harmful or prejudicial to the complaining party.

Ettinger v. Triangle-Pac. Corp., 799 A.2d 95, 110 (Pa. Super. 2002),

appeal denied, 815 A.2d 1042 (Pa. 2003) (citation and quotation marks

omitted) (emphasis added).

Appellant appears to claim that the trial judge should have accepted

the interpretation of his expert, Mr. Altopiedi, of what constitutes the

controlling law. (See Appellant’s Brief, at 15). In another considerably

abbreviated argument, consisting of five sentences in less than half a page,

Appellant claims that his expert’s conclusions were “credible and correct.”

(Id.). We disagree.

Appellant’s claim, in effect, disregards our standard of review for the

admission of expert testimony, which requires “a showing that the trial court

clearly abused its discretion or committed an error of law.” Ettinger, supra

at 110. Furthermore, it is well settled that in a non-jury trial, the trial judge

has the dual function of making rulings of law, and weighing the evidence as

fact-finder. See Pa.R.C.P. 1038; see also Kornfeld, supra at 173.

Preliminarily, we note that Appellant raises one question (purported

disregard of his expert’s opinion), and argues another (trial court treatment

of Attorney Falzone as expert instead of fact witness). (See Appellant’s

Brief, at 5, 15). In any event, Appellant’s issue and argument are both

undeveloped and unpersuasive.

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Instead, Appellant argues, in effect, that the trial court erred because

it should have accepted the conclusions of his expert. (See id. at 15). To

prove this claim, Appellant had to establish by proper development of an

argument with citation to pertinent authority that this conclusion was legally

correct. He utterly fails to do so.

Rather, he postulates, without pertinent authority, that the trial court

improperly noted that Attorney Falzone’s testimony (that he regularly held

funds in escrow for clients) conflicted with Mr. Altopiedi’s conclusion that “it

is a clear breach of fiduciary duty for a broker to allow deposit money to go

to a third party[.]” (Trial Ct. Op. at 22; see also Appellant’s Brief, at 15).

Appellant fails to develop or support an argument of trial court error. His

claim is waived.

Moreover, it would not merit relief. Appellant recognizes that “[w]hen

two experts provide conflicting testimony, the trier of fact may discredit

them both.” (Appellant’s Brief, at 15). For authority, Appellant cites

Mudano v. Philadelphia Rapid Transit Co., 137 A. 104 (Pa. 1927). (See

Appellant’s Brief, at 15). Inexplicably, Appellant then premises his argument

on the acknowledgement that here the trial court followed this principle.

(See id.) (“The trial court in this matter did exactly that.”).

Appellant appears to posit that the trial court should have deferred to

Mr. Altopiedi’s interpretation. (See id.). However, Appellant fails to develop

an argument that the trial court was in error, beyond the self-serving but

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otherwise unsupported assertion that his expert “was credible and correct.”

(Id.). On independent review, we conclude that the trial court correctly

decided that the deposit of funds with a party other than the broker is

expressly permitted under 63 Pa.C.S.A. § 455.608e(k).20

In this case, the parties to the agreement of sale agreed in writing to

have the deposit paid to the builder. There is no dispute that Appellee

Palladino, a witness but not a party to the agreement of sale, correctly

informed Appellant that he could not purchase the house he wanted without

compliance. Her advice was truthful, and by all accounts, accurate. It was,

in essence, the same advice his own lawyer later testified that he would

have given, had he been retained before the fact. (See N.T. Trial, at 108-

09). Nevertheless, Appellant chose to comply. Appellee Palladino did not

receive any funds to be escrowed.

____________________________________________

20

Sub-section (k) provides:

This section does not preclude the parties to a transaction

from agreeing in writing or electronic form to have deposits or

other escrows held by a person other than the brokers who

represent the parties. This subsection shall not be construed to

allow an associate broker, salesperson or qualified association to

hold deposits or other escrows.

63 P.S. § 455.608e(k).

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Appellant argues that his expert’s opinion should have been adopted

by the trial court, but he offers no persuasive argument in support of the

proposition that sub-section (k) does not apply. We conclude it does.

Our review of legal questions is de novo and plenary. See Flaherty,

supra at 288; Williams, supra at 21; In re Wilson, supra at 214. We

conclude that none of the statutory or administrative code interpretations

proposed by Appellant show error by the trial court in its conclusion that

Appellant waived his right to escrow and knowingly acceded to the builder’s

direct deposit requirement to obtain the house he particularly wanted.

Although our reasoning differs somewhat from that of the trial court,

we may affirm on any basis provided that the court’s decision is legally

correct. See Prieto Corp. v. Gambone Const. Co., 100 A.3d 602, 606

(Pa. Super. 2014).

Judgment affirmed.

Judge Lazarus joins the Opinion.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/18/2015

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